Fleming Oil Co. v. Watts, 6197.

Citation193 S.W.2d 979
Decision Date21 March 1946
Docket NumberNo. 6197.,6197.
PartiesFLEMING OIL CO. et al. v. WATTS et ux.
CourtCourt of Appeals of Texas

Appeal from District Court, Gregg County; S. H. Sanders, Judge.

Action by Emmitt Watts and wife against Fleming Oil Company and others to recover for the wrongful death of plaintiffs' three minor children allegedly caused by defendants' negligence, wherein defendants Fleming Oil Company, Fleming, and Kimbell prayed judgment over against defendant Gregg-Tex Gasoline Corporation, and wherein defendant Gregg-Tex Gasoline Corporation prayed for judgment over against Fleming Oil Company and Fleming and Kimbell. From an adverse judgment, defendant Fleming Oil Company and Fleming and Kimbell appeal.

Affirmed in part and reversed and rendered in part.

Ramey, Calhoun, Marsh, Brelsford & Sheehy, of Tyler, and Touchstone, Wight, Gormley & Touchstone, of Dallas, for appellants.

Angus G. Wynne, Philip Brin, H. P. Smead, E. A. Martin, Giles Harris, Hurst & Burke, and L. F. Burke, all of Longview, and Vernon Coe and Dan P. Johnston, both of Dallas, for appellees.

HALL, Chief Justice.

This suit was instituted by appellees, Emmitt Watts and wife, against Fleming Oil Company, Fleming and Kimbell, hereafter referred to as oil companies, and Gregg-Tex Gasoline Corporation, for damages, both actual and exemplary, for the death of their three minor children caused by the alleged negligence of the oil companies and Gregg-Tex Gasoline Corporation. It was alleged that the oil companies and Gregg-Tex Gasoline Corporation operated an oil and gas lease in Gregg County, adjacent to appellees' residence; that said companies negligently permitted the unburned gas from their flare line to escape upon the premises of appellees which became ignited, causing the death of their children.

The oil companies answered first with general denial and later by amended pleadings containing certain exceptions, unavoidable accident and contributory negligence. They also sought judgment over against Gregg-Tex Gasoline Corporation, and Gregg-Tex Gasoline Corporation prayed for judgment over against Fleming Oil Company and Fleming and Kimbell.

The trial was to a jury upon special issues which were answered favorably to appellees and Gregg-Tex Gasoline Corporation. In response to the jury verdict judgment was rendered for appellees Emmitt Watts and wife for $7500 actual and $7500 exemplary damages, and for appellee Gregg-Tex Gasoline Corporation.

The oil companies by their first point assert that "the court erred in awarding plaintiffs (appellees Watts and wife) judgment for punitive damages."

Appellees' three minor children, age 17, 15, and 10 years, were burned to death in a gas fire originating upon the premises of the oil companies near the end of one of their flare lines on the late afternoon of September 4, 1944. They were rushed immediately to a hospital at Longview and were admitted into said institution at 8:30 p. m. The children died next morning, September 5, 1944, one at 2:45, another at 3:13 and the last at 8:30. Witnesses who saw the tragedy stated that the three children had been sent by their mother to gather some wood with which to cook supper. They went in the vicinity of the oil companies' flare line, which the evidence shows was lying on the ground. A short time after the children were sent to gather wood, witnesses were attracted by their screams and saw them enveloped in flames. The mother immediately rushed to their assistance and extinguished the fire in their burning clothes and hair, at which time the witnesses noticed flames gushing from the end of the oil companies' flare line. There is no evidence in the record as to how the fire started.

This action was brought by appellees, as mother and father, in their own right. Appellees' pleadings as a whole substantiate this fact. Their petition sets out certain acts of misconduct on the part of the oil companies which it is alleged constitute ordinary negligence and gross negligence. It is quite generally the rule that exemplary damages are personal to the injured party and do not survive in favor of the beneficiary. In Sutherland on Damages, 3rd Edition, Vol. 2, Sec. 392, p. 1089, it is said:

"Neither can exemplary damages be awarded, as a general rule, for they are peculiar to the person, and do not relate to pecuniary or property rights. And, notwithstanding all causes of action now survive, in assessing damages we must look to the wrong to be remedied, and the injury to be repaired. When the action is brought by the representative of one deceased it is to right the wrong done to his estate."

See also Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. 876.

In this State, however, Art. 16, Sec. 26, of our Constitution, Vernon's Ann.St., provides:

"Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there might be, without regard to any criminal proceedings that may or may not be had in relation to the homicide."

The appellees not being heirs of the body of their three minor children, the above provision of the constitution effectively bars their suit for exemplary damages. It was said in Houston & T. C. R. Co. v. Baker, 57 Tex. 419:

"There is another fatal objection to the judgment awarding exemplary damages, which is fundamental. By the terms of the constitution, only the surviving husband, widow or heirs of the body of the person whose death occurred by such willful act or omission are entitled to maintain actions for and recover exemplary damages for such homicide. It will not, we apprehend, be seriously claimed that the appellee, Spencer Baker, is heir of the body of his son, Lee Baker. That term has a well-defined meaning at common law, and includes only the children begotten by the person. That, too, is the generally, and we might add universally, accepted signification of the term, when used in common parlance. It is only those persons to whom the right is given that can maintain the suit under the constitution for exemplary damages."

See also Winnt v. International & G. N. R. Co., 74 Tex. 32, 11 S.W. 907, 5 L.R.A. 172; Gulf, C. & S. F. R. Co. v. Compton, 75 Tex. 667, 13 S.W. 667; Silurian Oil Company v. White, Tex.Civ.App., 252 S.W. 569, writ refused. "The Legislature was without power to add to or take from the conditions under which, by virtue of the...

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16 cases
  • Hofer v. Lavender, C-2552
    • United States
    • Supreme Court of Texas
    • 11 Julio 1984
    ...... Likewise, we do not consider as authority Fleming Oil Co. v. Watts, 193 S.W.2d 979 (Tex.Civ.App.--Texarkana 1946, writ ref'd n.r.e.). That case ......
  • Churchill v. Norfolk & W. Ry. Co., 49421
    • United States
    • Supreme Court of Illinois
    • 6 Octubre 1978
    ...damages are allowed only to the immediate person receiving the injury. (Fleming Oil Co. v. [73 Ill.2d 153] Watts (Tex.Civ.App.1946), 193 S.W.2d 979; People v. Superior Court of Los Angeles County (1973), 9 Cal.3d 283, 107 Cal.Rptr. 192, 507 P.2d 1400; Dugar v. Happy Tiger Records, Inc. (197......
  • Cagle v. McQueen, 13955.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Enero 1953
    ...Gas Corp. v. Crawford, 141 Tex. 332, 172 S. W.2d 297. 6 S. Blickman, Inc. v. Chilton, Tex.Civ. App., 114 S.W.2d 646; Fleming Oil Co. v. Watts, Tex.Civ.App., 193 S.W.2d 979; Texas Co. v. Brown, Tex.Civ.App., 82 S. W.2d 1101; and 17 Texas Jur., p. 565, Sec. ...
  • Vassallo v. Nederl-Amerik Stoomv Maats Holland
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 17 Junio 1960
    ...Marcus v. Huguley, Tex.Civ.App., 37 S.W.2d 1100; Texas Company v. Brown, Tex.Civ.App., 82 S.W.2d 1101 (Writ Dis.); Fleming Oil Co. v. Watts, Tex.Civ.App., 193 S.W.2d 979; Davis Transport, Inc. v. Bolstad, Tex.Civ.App., 295 S.W.2d 941 (Writ Dis.). Although these cases do not involve causes o......
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